2018 QCCQ 3003, 2018 QCCQ 3003

Dulgar c. Wawanesa Mutual Insurance Company 2018 QCCQ 3003 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-225477-150 DATE: May 4, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ RICHARD DULGAR Plaintiff v. WAWANESA MUTUAL INSURANCE COMPANY Defendant and BMW FINANCIAL SERVICES, a division of BMW CANADA INC.

Intervener ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant insurance company, in damages, as it is denying coverage under a contract which intervened between the parties on April 4, 2015 (“the contract”). THE FACTS [ 2 ] Plaintiff’s testimony was credible, unwavering and convincing.

The Court therefore chooses to rely on his version of the facts, summarized as follows. [ 3 ] Plaintiff was insured with defendant for 23 years (list of admissions, par. 2). [ 4 ] Plaintiff was the lessor of a 2014 BMW 328 D. BMW Canada was its owner. The vehicle was insured under the contract (list of admissions, pars. 1 and 4). [ 5 ] An accident occurred, on July 17, 2015. The vehicle was a total loss.

Its fair market value at that time was $40,000.00 (list of admissions, pars. 3 and 5). [ 6 ] Plaintiff submitted a claim to defendant, which was denied on the basis of policy non-renewal. [ 7 ] Plaintiff was advised verbally that his policy had been cancelled, on July 20, 2015, when he called defendant to report the accident. His response to this information was, “It’s impossible! Why?”, at which time he was informed of the reason therefor, namely non-payment of the premiums. Plaintiff immediately reiterated that it “was impossible”, as he had “sent the cheques out (to defendant)

already”. [ 8 ] Faced with this shocking news, plaintiff immediately went to defendant’s St-Eustache office, in order to meet with and speak to “the lady” with whom he had been dealing for years. [ 9 ] Unable to resolve the issue in person, and after securing coverage for another of his vehicles under the same policy, plaintiff left defendant’s office and contacted his lawyer. [ 10 ] It appears that plaintiff, who had sent 5 postdated cheques to defendant at either the end of February or the beginning of March, 2015, to pay his premium (this, in fact, had been his modus operandi for over 20 years), never heard back from defendant advising of non-payment.

Had he been advised accordingly, plaintiff “would have looked after it right away”.

Plaintiff described himself as being a responsible person who had “never had an NSF cheque in 30 years”, and stated that he had always managed his affairs with defendant in a responsible fashion, albeit sometimes paying his premiums during the grace period. [ 11 ] Plaintiff did receive defendant’s “Offer to Renew” (exhibit D-4), but received no other letters or notifications, from either plaintiff or BMW, related to the policy or the post-dated cheques. [ 12 ] Plaintiff stated that he normally does not have trouble receiving his mail; but, he does not recall having received lapse notices D- 2 and D-5.

There is no conclusive evidence as to where the postal problem occurred, whether on the shipping end (defendant’s end) or the receiving end (plaintiff’s end). [ 13 ] The evidence did show, however, that, in 2014, plaintiff was obliged to re-issue 4 postdated cheques to defendant, as it had mishandled said cheques and eventually sent them back to him.

ANALYSIS [ 14 ] As above stated, the Court finds plaintiff’s testimony to be reliable and believes that he paid his premiums by way of 5 post- dated cheques (exhibit D-12), which he sent to defendant, in a self-addressed envelope, similar to exhibit D -15, with his return address on it, either at the end of February or the beginning of March, 2015. [ 15 ] The fact that this envelope was never returned to plaintiff would suggest that it was received by defendant. [ 16 ] Defendant would have the Court believe that its automated processing center located in Winnipeg, Manitoba, is perfect; alas, nothing is.

One need only refer back to defendant’s mishandling of plaintiff’s cheques in 2014, to realize as much. [ 17 ] WHEREAS payment is deemed to have been made upon the insurer’s receipt thereof [1] ; [ 18 ] GIVEN Offer to Renew D-4 and Lessor Notices D-4 indicating “Policy In Force”; [ 19 ] WHEREAS , furthermore, plaintiff never received a notice of cancellation from defendant [2] ; [ 20 ] GIVEN art. 91 of the Insurance Act of Quebec [3] ; and [ 21 ] WHEREAS the contract was therefore renewed as of right, pursuant to art. 90 of the Act; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's motion to introduce proceedings for damages, in part; CONDEMNS defendant to pay plaintiff the sum of $40,000.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from September 5, 2015; GRANTS BMW Canada Inc.’s aggressive intervention, as per its conclusions, save for the amount of $44,944.89, which must be replaced by the amended amount of $40,000.00; THE WHOLE with legal costs. __________________________________ ELIANA MARENGO, J.C.Q. Me Nicolas Archambault TALBOT KINGSBURY Lawyers for Plaintiff

Me Alexandre Paris BÉLANGER SAUVÉ s.e.n.c.r.l. Lawyers for Defendant Me Michael Redmond SAVOIE JOUBERT Lawyers for Intervener Dates of hearings: March 22 and 23, 2018